October 21, 2019

October 21, 2019

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Second Circuit Holds Receipt of Unwanted Text Messages, Even Without Other Alleged Harm, Confers Standing for TCPA Claims

Joining similar decisions from the U.S. Courts of Appeals for the Third and Ninth Circuits, the Second Circuit held in Melito v. Experian Marketing Solutions, Inc. that the receipt of unwanted text messages, even without any other alleged harm, meets the injury-in-fact requirement for Article III standing to bring Telephone Consumer Protection Act (TCPA) claims.

In rendering its decision, the Second Circuit determined that the plaintiffs—representatives of a conditionally certified settlement class of more than 618,000 people who received text messages on their cell phones from American Eagle Outfitters, Inc. (AEO)—had standing to bring claims under the TCPA. The plaintiffs alleged they received the text messages but did no other harm. The court determined there was standing to bring TCPA claims because "text messages, while different in some respects from the receipt of calls or faxes specifically mentioned in the TCPA, present the same 'nuisance and privacy invasion' envisioned by Congress when it enacted the TCPA." The court also emphasized that the harm was closely related to traditional common law claims for "invasions of privacy, intrusion upon seclusion, and nuisance." Therefore, receiving an unwanted text message suffices to show both a concrete and particularized injury.        

Melito is the latest TCPA development in the aftermath of the U.S. Supreme Court’s decision in Spokeo Inc. v. Robins, which held that, in the context of the Fair Credit Reporting Act (FCRA), to have Article III standing, plaintiffs must establish "injury in fact" by showing "an invasion of a legally protected interest" that is both "concrete and particularized."  In the FCRA context, Spokeo requires more than just a bare procedural violation in order to establish injury in fact.

By contrast, in Melito, the Second Circuit joined two other circuits in holding that, in the TCPA context, a text message received in violation of the TCPA – even without more – is sufficient for Article III standing. 

Melito could lead to even more TCPA class action litigation because, in at least three circuits, there is now no requirement to show harm beyond a technical TCPA violation to have Article III standing. The decisions in Melito, along with Van Patten v. Vertical Fitness Group, LLC, and Susinno v. Work Out World Inc., could also have other far-reaching consequences because numerous statutes other than the TCPA allow plaintiffs to recover statutory damages where actual damages for violations are often difficult to prove or nonexistent. How courts ultimately resolve the tension between the Supreme Court’s FCRA decision in Spokeo and TCPA cases such as Melito remains to be seen.

Copyright © by Ballard Spahr LLP


About this Author

Daniel McKenna, Ballard Spahr Law Firm, Philadelphia, Litigation Attorney

Daniel JT McKenna devotes his practice to privacy and data security, consumer financial services, and mortgage banking litigation.

Mr. McKenna's privacy practice focuses on new product and process design, privacy impact assessments and audits, privacy management and policy, incident planning, incident response and notification, third-party and vendor management, privacy counseling, regulatory comments, and litigation. His clients include banks, loan service providers, health care providers, manufacturers, colleges and universities, and member...

Rachel Mentz, Litigator, intellectual property, trade secrets, Ballard Spahr Law FIrm, Denver, Colorado

As an experienced trial attorney, Rachel R. Mentz works with clients to resolve complex disputes both in and out of court. Ms. Mentz draws from her prior career as a teacher to counsel clients so they understand the legal parameters of a particular dispute or the applicable legal or regulatory framework and can best evaluate their options. She also works with clients to develop programs and best practices to help avoid litigation.

Ms. Mentz has experience litigating cases in both state and federal courts involving contract, intellectual property, trade secret, consumer finance, banking, mortgage lending, creditor-debtor relations, real estate, insurance coverage, construction defect, and employment law issues. She has a strong background in eDiscovery that allows her to work with clients to implement savvy and cost-effective methods for managing internal investigations and discovery.